Nothing has divided Canadians or provoked such violent rage against Canada’s judicial system as the acquittal of former CBC radio host Jian Ghomeshi.
Defence attorney Marie Henein, whose aggressive, no-holds-bared questioning of the three victims was decisive in securing the acquittal, has been singled out for both praise and censure. To many women, she’s become a traitor to her sex.
The public outrage is the product of a seemingly obvious injustice; Ghomeshi, by his own admission, has a history of violence against women. Indeed, he claimed that rough sex is natural, an alternative lifestyle on a par with other dangerous activities like mountain climbing.
It’s also pretty clear that Ghomeshi physically assaulted the women involved, which renders the outcome of the trial an incomprehensible travesty, at least to the public.
So is the judicial system corrupt? Is this verdict not the final indictment of an antiquated patriarchal system that fails to protect women from harm?
The answer is no, but the why is neither obvious nor straightforward. Ghomeshi is probably guilty of the crimes he was (and is) accused of, but was not proven guilty in law because of an ancient bias built into our judicial system.
The system is not fair and balanced as most of us assume. There is a strong bias in judicial proceedings; it’s called the presumption of innocence. The Canadian legal apparatus is complex, but the Anglo part of it is derived from England’s Common Law tradition. In Common Law today, the courts bend over backward to protect a potentially innocent person from being found wrongfully guilty.
Unlike the court of public opinion, in a court of law the accused does not have to prove his innocence. In the case of Ghomeshi, the onus was on the Crown to prove beyond a reasonable doubt that a crime had been committed. This is where the bias emerges. The prosecution must not only prove their case, but is limited to using physical evidence (legally obtained) and the testimony of witnesses sworn under oath. Undermine the integrity of any part of this evidence and you create reasonable doubt and set the stage for acquittal.
As a result, the defense strategy was relatively simple. Lacking any physical evidence, the case hinged on the sworn testimony of the victims about events that took place a decade ago. In exposing (even understandable) inconsistencies and lapses of memory, Henein was able to cast doubt on the victims’ sworn testimony. Although the public compensates for these lapses, indeed finds them perfectly reasonable under the circumstances, a judge schooled in the Common Law tradition cannot.
The next obvious question is: why does this strict and seemingly unreasonable bias exist?
The answer to that question is historical; in fact it originated with the violent injustices that occurred during the English civil wars of the 17th century. In those far off days, there was no presumption of innocence. Quite the contrary. An accused person was naturally assumed to be guilty. Trials were short, hearsay and rumors were often entered as evidence and political bias habitually determined outcomes. The result was vast numbers of innocent people condemned to rot away their lives in prison or to swing from the busy English gallows.
The bias started to change after a judicial reign-of-terror conducted by one of England’s most appalling judges. ‘Hanging Judge’ George Jeffrey was so monstrous and politically biased in his judgments that he helped trigger the Glorious Revolution of 1688.
England’s judicial system had become so corrupt, bloody and unfair that after the revolutionary wars the presumption of innocence became incorporated within the system and remains a cornerstone of the Common Law tradition utilized by English speaking societies today.
The courtroom is no place for sexual assault cases. By their very nature these cases generally lack physical evidence and most rest on differing opinions and/or versions of events that occurred in private. With the presumption of innocence so solidly in play, it’s very difficult, if not impossible, to deliver just and sensible decisions.
Rather than weaken the present judicial system, which exists to overprotect the innocent, perhaps a separate tribunal system for sexual assault cases could be designed that would operate more like an indigenous justice circle or arbitration, which could give an open and fair hearing to all parties and help stem a growing societal problem.
Robert McGarvey is an economic historian and former managing director of Merlin Consulting, a London, U.K.-based consulting firm. Robert’s most recent book is Futuromics: A Guide to Thriving in Capitalism’s Third Wave.
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